Judge: Melvin D. Sandvig, Case: 20STCV09257, Date: 2022-09-15 Tentative Ruling
Case Number: 20STCV09257 Hearing Date: September 15, 2022 Dept: F47
Dept. F-47
Date: 9/15/22
TRIAL DATE: 5/1/23
Case #20STCV09257
MOTION TO COMPEL FURTHER RESPONSES
(Document Requests, Set 3)
Motion filed on
8/9/22.
MOVING PARTY: Plaintiff Denise Caouette
RESPONDING PARTY: Defendant Pacifica Hospital of the
Valley
NOTICE: ok
RULING: The motion is granted as set forth
below. Further responses and sanctions
are payable within 30 days.
This action arises out of the care and treatment provided
by Defendant Pacifica Hospital of the Valley (Defendant) and others to decedent
James Caouette, III (Decedent), Plaintiff Denise Caouette’s son (Plaintiff). The operative Third Amended Complaint
contains causes of action for: (1) Medical Malpractice (CCP 377.30 and CCP
377.60); (2) Elder Abuse – Welfare & Institutions Code 15657, 15610.57; and
(3) Wrongful Death.
On 5/18/22, Plaintiff served Defendant with Request for
Production of Documents, Set 3. (De Soto
Decl. ¶1, Ex.A). On 6/21/22, Defendant
served responses to the discovery. (Id.
¶2, Ex.B). Despite meet and confer
efforts, the parties could not resolve their dispute regarding the sufficiency
of Defendant’s responses to Requests 53-58.
(Id. at ¶¶3-6, Ex.C-F).
Therefore, on 8/9/22, Plaintiff filed and served the instant motion
which seeks an order compelling Defendant Pacifica Hospital of the Valley to
provide further responses to Plaintiff’s Request for Production of Documents,
Set 3, numbers 53, 54, 55, 56, 57 and 58.
Specifically, Plaintiff requests that Defendant identify and/or describe
the responsive documents in a privilege log within 25 days of the hearing on
the motion. Additionally, Plaintiff
requests sanctions in the amount of $2,870.00 against Defendant and its counsel
of record James J. Kjar, Esq., Jason J. Peterson, Esq.,
and Robin Y. Solmayor, Esq., KJAR, McKENNA & STOCKALPER LLP, jointly and
severally.
The requests at issue seek the following documents:
REQUEST 53: Any and all of YOUR DOCUMENTS
REGARDING any complaints PACIFICA received regarding the wound care of any of
its patients, from 2009 to the time DECEDENT was presented to PACIFICA. (This
request does not seek any records or proceedings from any organized committee
that may have dealt with the complaints).
REQUEST 54: Any and all of YOUR DOCUMENTS
REGARDING any complaints PACIFICA received regarding bed sores of any of its
patients, from 2009 to the time DECEDENT was presented to PACIFICA. (This
request does not seek any records or proceedings from any organized committee
that may have dealt with the complaints).
REQUEST 55: Any and all of YOUR DOCUMENTS
REGARDING any complaints PACIFICA received regarding feces seeping into the bed
sores of any of its patients, from 2009 to the time DECEDENT was presented to
PACIFICA. (This request does not seek any records or proceedings from any organized
committee that may have dealt with the complaints).
REQUEST 56: Any and all of YOUR DOCUMENTS
REGARDING any complaints PACIFICA received regarding feces not being cleaned
from patients, from 2009 to the time DECEDENT was presented to PACIFICA. (This
request does not seek any records or proceedings from any organized committee
that may have dealt with the complaints).
REQUEST 57: Any and all of YOUR DOCUMENTS
REGARDING any complaints PACIFICA received regarding the lack of
turning/re-positioning of patients, from 2009 to the time DECEDENT was
presented to PACIFICA. (This request does not seek any records or proceedings
from any organized committee that may have dealt with the complaints).
REQUEST 58: Any and all of YOUR DOCUMENTS
REGARDING any complaints PACIFICA received regarding pressure wounds on
patients, from 2009 to the time DECEDENT was presented to PACIFICA. (This
request does not seek any records or proceedings from
any organized committee that may have dealt with the complaints).
Defendant has provided the same response to each of the
foregoing requests:
Objection. This request is vague,
ambiguous, overly broad, is unlimited in scope and time, calls for speculation,
is unintelligible as phrased, seeks to violate Evidence Code, section 1157, and
seeks to invade the privacy rights of third parties not parties to this
litigation and not involved in decedent’s care, is unduly burdensome,
oppressive, harassing, and seeks information and documents that are irrelevant
and which are not reasonably calculated to lead to the discovery of admissible
evidence. This interrogatory also
improperly and premature seeks the discovery of expert opinions in violation of
Code of Civil Procedure, section 2034.010 et seq., as well as information
protected by the attorney client privilege and the attorney work product
doctrine. Defendant further objects that
this interrogatory seeks to violate HIPPA.
This request seeks information inadmissible pursuant to Evidence Code,
section 1101 and 1104.
Whether Defendant had notice of prior complaints similar
to those made by Plaintiff in this action is relevant to Plaintiff’s claims
against Defendant in this action. As
such, Plaintiff has met her burden of showing good cause for the
discovery. The burden then shifts to
Defendant to justify its objections to the requests. See Kirkland (2002) 95 CA4th
92, 98.
Here, Defendant has failed to justify its objection only
responses. CCP 2031.240 provides in
relevant part:
(b) If the responding party objects
to the demand for inspection, copying, testing, or sampling of an item or
category of item, the response shall do both of the following:
(1) Identify with particularity any
document, tangible thing, land, or electronically stored information falling
within any category of item in the demand to which an objection is being made.
(2) Set forth clearly the extent
of, and the specific ground for, the objection. If an objection is based on a
claim of privilege, the particular privilege invoked shall be stated. If an
objection is based on a claim that the information sought is protected work
product under Chapter 4 (commencing with Section 2018.010), that claim shall be
expressly asserted.
(c) (1) If an objection is based on
a claim of privilege or a claim that the information sought is protected work
product, the response shall provide sufficient factual information for other
parties to evaluate the merits of that claim, including, if necessary, a
privilege log.
The opposition focuses on Defendant’s
objection pursuant to Evidence Code 1157.
Evidence Code 1157(a) provides that “[n]either the proceedings nor the
records of organized committees of medical ... staffs in hospitals, or
of a peer review body, ... having the responsibility of evaluation and
improvement of the quality of care rendered in the hospital ... shall be
subject to discovery.” Evidence Code
1157(b) precludes forced testimony by a committee member as to matters
discussed at a committee meeting and subdivisions (c), (d), and (e) set forth
exceptions to the privileges established in subdivisions (a) and (b).
Contrary to Defendant’s
assertion, Evidence Code 1157 provides a “privilege” against disclosure during
discovery, not a blanket protection allowing Defendant object to the discovery
requests without comply with the requirements of CCP 2031.240. See Willits (1993) 20 CA4th 90,
94 (“Thus, by asserting the privilege under 1157, subdivision (a)…); (See
Opposition, p.5:2). Defendant cites no
authority to support its conclusion that “the purpose and protection from
discovery of the documents contained in this protected Section 1157 file would
be complete[ly] frustrated if a privilege log were required as contended by
plaintiffs.” (See Opposition,
p.5:22-25). Further, case law relied on
by Defendant does not support the conclusion that Defendant is protected from
having to provide a privilege log to support its claim that responsive
documents are privileged under Evidence Code 1157. See Santa Rosa Memorial Hospital
(1985) 174 CA3d 711, 725, 729 (The court rejected the hospital’s contention
that the information sought from the nurse witness was necessarily subject to a
blanket immunity from discovery under Evidence Code 1157.); Roseville
Community Hospital (1977) 70 CA3d 809, 812 (This case did not deal with a
motion to compel further responses (i.e., a privilege log), but rather the
production of documents which were determined to fall under the privilege
provided by Evidence Code 1157.).
The document requests at issue
here specifically state that they do not seek any records or proceedings from
any organized committee that may have dealt with the complaints. Plaintiff is entitled to further responses to
the subject document requests which includes a privilege log setting forth the
documents Defendant claims are protected from discovery so that Plaintiff’s
counsel, and if necessary, the Court, can evaluate the claim of privilege under
Evidence Code 1157.
During the meet and confer
process, Plaintiff agreed to accept documents with all identifying information
redacted or to prepare a HIPPA compliant protective order. As such, Defendant’s objection based on the
privacy of third parties (HIPPA) which is not specifically addressed in the
opposition appears to be moot. Further,
the opposition fails address the remaining objections asserted by Defendant in
the subject responses (i.e., vague, ambiguous, overbroad, harassing,
burdensome, etc.).
The Court finds that sanctions in the amount of $2,810.00
against Defendant and its counsel James J. Kjar, Esq., Jason J. Peterson, Esq.,
and Robin Y. Solmayor, Esq., KJAR, McKENNA & STOCKALPER LLP, jointly and
severally, are warranted. See CCP
2031.310(h). The sanctions of $2,870.00 requested
were reduced by the anticipated $60 filing fee for the reply as there is no
such filing fee. Otherwise, the Court
finds that the 5.5 hours of attorney time at the hourly rate of $500.00 is
reasonable for the preparation of the motion, review of the opposition,
preparation of the reply and appearance on the motion. Plaintiff is also entitled to recover the $60
filing fee for the motion.